HKSAR v. Hui Wang Chin

CAC C 158/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 158 OF 2012

(ON APPEAL FROM DCCC NO. 1347 OF 2011)

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BETWEEN

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

1.This is an application for leave to appeal sentence. The applicant was convicted after trial before Judge Chainrai in the District Court of causing death by dangerous driving and sentenced to 3 years’ imprisonment.

2.The accident occurred shortly before 7 pm on 23 May 2011 at Hoi On Road, Tsuen Wan.  The applicant was driving a public light bus, with passengers on board, along the middle lane of Lai Shun Road which forms a T-junction with Hoi On Road.  Traffic from the south east bound lanes of Lai Shun Road is permitted to make a right turn into the south west bound lanes of Hoi On Road.  Traffic at the junction is controlled by traffic lights and there is a pedestrian crossing both at those traffic lights and another such crossing at Hoi On Road.

3.What happened was that the applicant drove his bus along Lai Shun Road into the junction and turned right into Hoi On Road at which time a 77-year-old man was crossing the pedestrian crossing in Hoi On Road.  The pedestrian was struck by the applicant’s bus and rendered unconscious.  He was taken to hospital but was there certified dead shortly before 7:45 pm.  The applicant was arrested at the scene and said that he had only been moving at 20 to 30 km/h and that when he entered the junction the traffic light had turned to amber.

4.However the data retrieved from the speed display unit installed on the public light bus showed that immediately prior to collision the speed was 47 km/h which was not in excess of the speed limit at that point but which the judge found to be an excessive speed in the circumstances.  

5.The most relevant evidence for present purposes was that of a retired police officer who was waiting to cross Lai Shun Road.  When he first saw the bus driven by the applicant, it was about 50 to 60 feet from the traffic lights and the traffic light was amber.  He was certain that the traffic light turned red before the applicant reached the junction.  He said that the bus did not decelerate as it approached the junction; he did not see any brake lights come onto the bus as it drove past him to turn right and the effect of his testimony was that he was struck by what he considered to be an irresponsible way in which the bus dashed forward to make the turn.  The judge concluded that “the traffic light ... had already changed to amber when [the applicant] was some 50 to 60 feet from where [the witness] stood at the pedestrian crossing on Lai Shun Road [and] the traffic light had changed to red before the public light bus reached the traffic lights, but the defendant did not slow down or stop, and when he drove the ... bus past the traffic lights, the traffic lights governing traffic on Lai Shun Road turning into Hoi On Road was red.”

6.As for the man who was knocked down, the judge concluded that he had crossed the pedestrian crossing against a red pedestrian crossing light.  That said, the applicant must at all material times have had an unobstructed view of the pedestrian crossing and of the deceased standing on its island preparing to cross.  She found as well that the applicant approached the intersection at too great a speed for the circumstances and that he did not slow down or stop as he approached the traffic light.  

7.None of the material findings of fact is under challenge.  The judge noted that the applicant was, at the time of sentencing, aged 54 years with one previous conviction, not driving related, so long ago as to be of no present consequence for sentencing purposes.  He was first issued with a driving licence in March 1982 and had only one fixed penalty ticket in 2009.  She noted too that the maximum sentence for the offence was 10 years’ imprisonment on conviction on indictment.  She analysed in some detail the sentencing principles for this type of offence and said that the applicant had demonstrated a conscious disregard for the traffic conditions and had driven with selfish disregard for the safety of other road users; for which reason this offence was, in her opinion, a serious one of its kind.  Although the deceased had crossed the pedestrian crossing against red traffic lights, nonetheless he was at all material times – or ought to have been – clearly visible to the applicant.  

8.She sentenced the applicant to 3 years’ imprisonment and disqualified him from holding or obtaining a driving licence for all classes of vehicles for five years from the date of his release from prison.  There are in effect two grounds of appeal.  The first is that the length of sentence was influenced by the suggested need to deter dangerous driving by public vehicle drivers and it is said by Mr Davies for the applicant that since no danger was caused in this case to the passengers of the bus, those cases which stress the need to deter bus drivers from dangerous driving had no application here.  The contention is that no more serious view was to be taken in the circumstances of this case than had the driver been a driver of a private car.

9.Although the judge did refer to the need to deter public bus drivers from dangerous driving, we are satisfied upon a reading of the extensive reasons for sentence as a whole, that the point made by the judge played scant role in the sentence at which she arrived for she concentrated on the key facts of driving against red lights and excessive speed as aspects in themselves that warranted the sentence imposed.  That said, we do not think that the judge’s reference to the need to deter bus drivers was misplaced because, although it is true that no passenger was injured, a bus that crosses a red light necessarily puts its passengers at risk and there is in any event an imperative to bring home to those who drive each day for a living the need to do so responsibly.

10.The second ground is that the sentence was in any event manifestly excessive for this was not a prolonged course of bad driving and the deceased himself crossed against a red light.  That much is true yet the fact is that a red light was crossed by this bus and the turn into Hoi On Road was made at a speed that was dangerous in the circumstances and all of this happened in the vicinity of pedestrian crossings.  The particular care to be taken in the vicinity of pedestrian crossings and the imperative to deter driving at excessive speed near them was emphasized by Ma CJHC, as he then was, in Secretary for Justice v Lam Siu Tong[2009] 5 HKLRD 601 at para 19.  In the light of a ten year maximum and the fact that this was a sentence after trial it cannot in our judgment be said that the sentence was manifestly excessive.  There is no complaint against the term of disqualification.

11.For these reasons, the application for leave is dismissed.

Mr Alain Sham, DDPP of Department of Justice, for the Respondent

Mr Oliver Davies, instructed by Wong & Co., for the Applicant